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Murphy v. Department of Education of City of New York

Supreme Court of New York, Second Department

November 1, 2017

Linda Murphy, appellant,
v.
Department of Education of the City of New York, et al., respondents. Index No. 502402/13

          Stewart Lee Karlin Law Group, P.C., New York, NY (Daniel E. Dugan of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Eric Lee of counsel), for respondents.

          RANDALL T. ENG, P.J., SHERI S. ROMAN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action to recover damages for discrimination in employment on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (29 USC § 621, et seq.), the plaintiff appeals from an order of the Supreme Court, Kings County (Genovesi, J.), dated April 16, 2015, which granted the defendants' motion to dismiss the amended complaint pursuant to CPLR 3211(a).

         ORDERED that the order is affirmed, with costs.

         The plaintiff was a teacher at a junior high school in Brooklyn. She commenced this action to recover damages for discrimination in employment on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (29 USC § 621, et seq.).

         The amended complaint alleged that the plaintiff had been subjected to repeated instances of discrimination by the principal and the assistant principal. The amended complaint alleged that these instances of discrimination created a hostile work environment and ultimately led to the constructive discharge of the plaintiff.

         The defendants moved to dismiss the amended complaint pursuant to CPLR 3211(a). The Supreme Court granted the defendants' motion, and the plaintiff appeals. We affirm.

         "On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Phillips v Taco Bell Corp., 152 A.D.3d 806, 807; see Leon v Martinez, 84 N.Y.2d 83, 87).

         The Age Discrimination in Employment Act of 1967 (hereinafter the ADEA) provides, in relevant part: "It shall be unlawful for an employer... to discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age" (29 USC § 623[a][1]; see Lichtman v Martin's News Shops Mgt., Inc., 81 A.D.3d 696, 697). "To establish a prima facie case of age discrimination under the ADEA, a claimant must demonstrate that: 1) [she] was within the protected age group; 2) [she] was qualified for the position; 3) [she] was subject to an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination'" (Terry v Ashcroft, 336 F.3d 128, 137-138 [2d Cir], quoting Roge v NYP Holdings, Inc., 257 F.3d 164, 168 [2d Cir]).

         Here, the amended complaint alleged that the plaintiff was subject to two types of adverse employment actions: (1) she was constructively discharged due to a hostile work environment, and (2) she was given "unsatisfactory" ratings with respect to certain annual performance evaluations. In the order appealed from, the Supreme Court concluded that the amended complaint failed to adequately allege that the plaintiff was subject to an adverse employment action.

         Initially, we reject the plaintiff's contention that the alleged "unsatisfactory" annual performance evaluations satisfied the requirement that the plaintiff was subject to an adverse employment action. Contrary to the plaintiff's contention, these negative evaluations may not serve as independent adverse employment actions because those discrete acts occurred more than 300 days before the plaintiff filed a complaint with the Equal Employment Opportunity Commission (see National Railroad Passenger Corporation v Morgan, 536 U.S. 101, 110). Although we have considered these annual performance evaluations in connection with the plaintiff's contention that she was constructively discharged due to a hostile work environment (see id. at 115-117), under the circumstances here they may not independently satisfy the requirement that she "was subject to an adverse employment action" (Terry v Ashcroft, 336 F.3d at 138; see National Railroad Passenger Corporation v Morgan, 536 U.S. at 113).

         In order to establish a cause of action alleging hostile work environment under the ADEA, a plaintiff must show that "the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Terry v Ashcroft, 336 F.3d at 147-148 [internal quotation marks omitted]; see Perry v Ethan Allen, Inc., 115 F.3d 143, 149 [2d Cir]). The United States Supreme Court has "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment" (Faragher v Boca Raton, 524 U.S. 775, 788). "This test has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, ' and the victim must also subjectively perceive that environment to be abusive" (Alfano v Costello, 294 F.3d 365, 374 [2d Cir], quoting Harris v Forklift Systems, Inc., 510 U.S. 17, 21).

         As a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive" (Perry v Ethan Allen, Inc., 115 F.3d at 149 [internal quotation marks omitted]; see Alfano v Costello, 294 F.3d at 374). "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness" (Alfano v Costello, 294 ...


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